ex-AZ3, USN
ND07-00736
 
Current Discharge and Applicant’s Request

Application Received:  20070419 	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. RE Code change
			2. Lack of due process; discharge based on DUI “zero tolerance” policy
			3. Post-service conduct

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PATTERN OF MISCONDUCT.

Date:  20071213		Location:  Washington D.C	 Representation:  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

Issue 2 ().  The Applicant implies that he was improperly discharged not on the merits of his case, but because his commanding officer had a “zero tolerance” policy towards driving under the influence (DUI) offenses.  His record, although incomplete, indicates that he had 2 nonjudicial punishments (NJP) in a 3 month period.  There is also evidence in the Applicant’s medical record to support the conclusion that the Applicant’s offenses were alcohol related.  The Applicant does not allege, and the Board found no reason to conclude, that the Applicant was not afforded his rights during his Captain’s Mast or in regard to the subsequent administrative separation process.  Based on the separation code on his DD 214, the Board concluded that the Applicant waived his right to contest the proposed separation and possible characterization of service at an administrative discharge board.  The Applicant claims that the DUI allegation against him was subsequently dismissed; however, the Board advises the Applicant that this is not dispositive of his case.  There are a variety of reasons why an allegation might be dismissed other than a lack of guilt.  (In this regard, the Board noted that the Applicant did not deny having committed the offense.)   Further, just as the Applicant’s NJP does not determine the results of his subsequent court, so the subsequent court decision does not necessarily invalidate the NJP.  Each forum makes its own independent determination based its assessment of the facts.  Therefore, the Board found no impropriety in the Applicant’s discharge.  However, the Board did find that, under all the circumstances of the case and in light of the Applicant’s excellent service throughout his enlistment, the Applicant’s characterization of service was inconsistent with standards of naval discipline and therefore inequitable.  

Issue 3 ().  The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  Although the Board did determine, as noted above, that an upgrade to general (under honorable conditions) was warranted based on the Applicant’s overall service record, it further determined, as of this time, that the Applicant has not provided any post-service documentation to consider further mitigating the misconduct that resulted in the characterization of discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 870820 UNTIL 940928”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (ActMar)	19831020 - 19840430  			Active:   	19840501 - 19870819  
										19870820 - 19901024  
										19901025 - 19920827  
										19920828 - 19940928  

Period of Service Under Review:
Date of Enlistment: 19940929			Years Contracted:  ; Extension:  	Date of Discharge:  19980722
Length of Service:  03  Yrs  09  Mths  24  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  		Age at Enlistment:  		AFQT:  31		Highest Rank/Rate:  AZ1
Evaluation marks (# of occasions):	Performance:  4.0(1)	Behavior:  4.0(1)	 OTA:  4.00 	4.0 scale
				Performance:  4.0(4)	Behavior:  4.0(4)	 OTA:  3.95 	5.0 scale
Awards and Decorations (per DD 214):  SSDR (3), CNO AVIATION SAFETY AWARD, NDSM, SASM, KLM, MUC, NAM, NAVY "E", GCM (3), AFSM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19980316:	NJP.  No further information found in service record.

19980517:	Medical Record:  Reason for visit:  0455, brought by Security because of tingling in left thumb due to tightness of handcuffs.  States only 2 beers about 2200.  Security reports BAC .15 btwn 2221 – 0350.
	Diagnosis:  Numbness and tingling due to handcuffs being too tight.
	Recommendation:  Return 24-48 hours for re-evaluation; release to Security.

19980618:	Suspension of RIR awarded at NJP on 19980316 vacated due to continued misconduct.

19980618:	NJP -- Viol UCMJ Art. 111 - Operate a motor vehicle while under the influence of alcohol.
	Awarded - FOP ($766.00) for (1 month); RIR (E-4); Restr for (14 days); Extra duties (14 days).

19980619:	Medical Record:  Reason for visit: Referred by SCPO for possible suicidal ideation due to recent Captain’s mast.     
	Diagnosis:  Not suicidal, no further workup indicated.
	Recommendation:  Fit for full duty.

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19980722

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		Other Documentation (Describe) 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 21 August 2002, 
Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, Drunken or reckless operation of a vehicle, aircraft, or vessel.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023